Allowed

G Srinivas v. Shri Felix Antony Menezes

Karnataka HC22 Jun 2021RFA/150/2021

Case brief

AI extract

What is this about?

Equal bench of Karnataka High Court allowed an appeal under Section 96 CPC filed against a suit decreeing recovery of money and cancellation of sale deeds. The High Court set aside the trial court's judgment and decree, finding that the appellant was denied an opportunity to address final arguments on merits.

What did the court decide?

The appeal was allowed. The judgment and decree of the trial court were set aside, and the matter was remitted for fresh adjudication on merits.

G Srinivas Vs Shri Felix Antony Menezes — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF JUNE, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE ARAVIND KUMAR

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AND

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THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

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R.F.A.No.150/2021 (MON)

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BETWEEN:

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G. SRINIVAS, S/O LATE H.S.GANESH, AGED ABOUT 36 YEARS, R/O HORAMAVU VILLAGE, KRISHNARAJAPURAM HOBLI, BANGALORE SOUTH TALUK, BANGALORE - 560 043.

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… APPELLANT

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(BY SRI. CHANDAN.S.RAO, ADV.)

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AND:

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SHRI. FELIX ANTONY MENEZES, S/O LATE JOHN FRANCIS MENEZES, AGED ABOUT 58 YEARS, GORIGUDDA, 3^RD CROSS, VALENCIA, MANGALORE - 575 002.

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PRESENTLY EMPLOYED AND R/AT C/O GULF AGENCY COMPANY (OMAN)LLC P.O.BOX 740, RUWI POSTAL CODE 112, SULTANATE OF OMAN

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REP. BY HIS DULY CONSTITUTED ATTORNEY, STEPHEN BOAZ, S/O LATE VSN VASAN,

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R/O Mo.327, 4^TH MAIN, OMBR LAYOUT, BANASAVADI, BENGALURU - 560 043.

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SMT. G.RAJESWARI, W/O LATE H.S.GANESH, AGED ABOUT 56 YEARS,

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G.SRIVANI, D/O LATE H.S.GANESH, AGED ABOUT 32 YEARS,

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G.SRISHYLA, D/O LATE H.S.GANESH, AGED ABOUT 23 YEARS,

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G.SRIKANTH, S/O LATE H.S.GANESH, AGED ABOUT 22 YEARS,

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RESPONDENTS 1 TO 5 ARE RESIDING AT No.508, NEAR WATER TANK, HORAMAVU VILLAGE, K.R.PURAM HOBLI, BENGALURU - 560 043. … RESPONDENTS

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(BY SRI. P.S.PRASANNA, ADV., FOR R-1; VIDE ORDER DATED 22.06.2021, NOTICE TO R-2, R-4 AND R-5 IS DISPENSED WITH)

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THIS APPEAL IS FILED UNDER SECTION 96 OF CP, AGAINST THE JUDGMENT AND DECREE DATED 16.06.2020 PASSED IN O.S.No.5854/2016 ON THE FILE OF THE III ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH No.25) PARTLY DECREEING THE SUIT FOR RECOVERY OF MONEY.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, ARAVIND KUMAR , J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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This is 3^rd defendant’s appeal challenging the correctness and legality of judgment and decree passed in O.S.No.5854/2016 dated 16.06.2020, whereunder, the suit filed by the 1^st respondent herein for recovery of Rs.42,02,330/- with interest at the rate of 18% per annum and consequential relief to direct cancellation of two sale deeds dated 11.10.2013 in respect of schedule ‘A’ and ‘B’ properties came to be decreed as prayed for.

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We had called for the records of the trial Court and same having been received. Though the matter is listed for admission, by consent of learned advocates appearing for the parties, it is taken up for final disposal.

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It was the contention of the plaintiff before the trial Court that defendant Nos.1 to 6 had sold suit ‘A’ and ‘B’ schedule properties under two sale deeds dated 11.10.2013, though the said properties had already been sold way back in 1994 to the Karnataka Nair Service Society and even decree had been passed in

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O.S.No.589/1998 on 21.04.2010 by the XXXVII Additional

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City Civil and Sessions Judge, Bengaluru, yet they had received a total consideration of Rs.27,83,000/- by cheque/RTGS/through cash from 03.07.2013 to 11.10.2013 from the plaintiff and thereby defendant Nos.1 to 6 had defrauded the plaintiff by selling the properties which had already been sold. Hence, he sought for recovery of money and to declare two sale deeds dated 11.10.2013 executed by defendant Nos.1 to 6 in his (plaintiff) favour as void and has also sought for two sale deeds being cancelled.

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Defendant No.3 had filed written statement and denied averments made in the plaint. Defendant Nos.2, 4 to 6 adopted the written statement filed by defendant No.3. On the basis of pleadings of parties, trial Court framed the following issues for its consideration:

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“1. Whether the Plaintiff proves that Defendant 1 to 6 cheated him and made him to part with Rs.27,83,000/- in their favour?

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Whether the Plaintiff proves that he is entitled for interest at 18% as prayed?

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Whether the Plaintiff is entitled for the reliefs as prayed?

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What Order or Decree?”

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Plaintiff got himself examined his GPA holder

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as PW1 and in all got marked 24 documents as Exs.P1 to P24. Defendant No.1 got himself examined as DW1 and in his cross examination 5 documents were marked as Exs.D1 to D6. Learned trial Judge by judgment and decree dated 16.06.2020, decreed the suit. Hence, this appeal.

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We have heard Sri.Chandan S. Rao, learned counsel appearing for appellant and Sri.R.S.Prasanna, learned counsel appearing for respondent No.1.

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We have dispensed with notice to defendant Nos.2, 4 to 6 as they were sailing with the appellant namely defendant No.3.

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It is the contention of Sri.Chandan S. Rao, learned counsel appearing for the appellant that trial

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Court has committed serious error in not affording any opportunity to the appellant - 3^rd defendant to address arguments and by referring to dates as enumerated and grounds urged in the appeal, he would contend that serious error has been committed by the learned trial Judge and as such, he has prayed for judgment and decree being set-aside and the matter being remitted to the trial Court for adjudication of matter on merits.

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9 . Per contra , Sri.R.S.Prasanna, learned counsel appearing for the 1^st respondent - plaintiff has supported the judgment and decree passed by trial Court and prays for dismissal of the appeal.

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Having heard learned counsel appearing for both parties, we are of the considered view that following points would arise for our consideration:

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(i) Whether judgment and decree passed in

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O.S.No.5854/2016 deserves to be set-

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aside on any ground or it is liable to be affirmed?

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(ii) What order?

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We have already noticed hereinabove, brief

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facts namely the plea putforth by the plaintiff and the defendants before the trial Court in support of their respective stand and any further elaboration of the said averments made in the plaint and written statement would only repetitive and we do not want to burden this judgment by repeating the same.

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Thrust of arguments canvassed by learned

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counsel for appellant is to the effect that appellant - 3^rd defendant was not afforded an opportunity to address the arguments on merits. It is in this background, we had called for records of the trial Court and on perusal of order sheet of the trial Court, it would clearly indicate that matter had been listed for final arguments on 15.04.2020. On said date, when the matter was called in the first round, learned advocates appearing for both the parties had remained absent. It would be necessary to extract the proceedings of the trial Court as recorded on 15.04.2020

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as found in page 26 of the order sheet of the trial Court which reads as under:

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“both counsel absent.

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From 06.01.2019, the matter is pending

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for arguments, though in between amended plaint copy was furnished.

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Hence, for judgment, kept by.

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At this time, learned advocate for

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plaintiff appeared and prayed that he is ready

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for argument.

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Heard learned advocate for plaintiff.

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For judgment, kept again.”

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The above entry made by learned Presiding

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Officer who has rendered the judgment under challenge would indicate he has not affixed his signature on 15.04.2020 to the proceedings recorded as noted herein above. It is rather very surprising and intriguing. Infact learned advocates appearing for both parties in chorus would admit that in the website of the trial Court insofar

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as it relates to present suit in question it is reflected as though matter had been listed on 04.05.2020, 18.05.2020, 08.06.2020 and 16.06.2020. However, said dates are not reflected in the original order sheet maintained by trial court. Infact, it would be apt and appropriate to note at this juncture itself that trial Court had been closed for summer vacation between 27.04.2020 to 22.05.2020. On 08.06.2020, the trial Courts came to be closed on account of national lockdown. As to how these dates are reflected in website is the question to be answered by the Registry of trial Court.

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Notwithstanding above observations, we notice, at the cost of repetition that on 15.04.2020 arguments were advanced by the plaintiff’s counsel in the second round. It is at this juncture, trial Court ought to have afforded an opportunity to the defendants. It is not the case of the 1^st respondent - plaintiff that such liberty was granted to the appellant - 3^rd defendant or any other defendants. Infact, the order sheet itself does not speak or reflect any such opportunity having been extended to the

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defendants. Hence, on this short ground itself, namely, on the ground of there being no opportunity having been extended to the appellant - 3^rd defendant and / or other defendants to address final arguments, the judgment and decree passed by the trial court is to be set-aside or in other words, same cannot be sustained.

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Though learned advocates have made an

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attempt to canvass the arguments on merit, we do not propose to enter upon the said area, inasmuch as the judgment of the trial Court is being set-aside and matter is being remanded back to the trial Court for adjudication afresh on merits by examining the rival claims on merits. Any opinion, if expressed by us on merits would definitely cause prejudice to the rights of the parties. Hence, we decline to express any opinion on merits of the matter. Hence, we answer point No.(i) in the affirmative namely, judgment and decree of the trial Court is liable to be setaside for the reasons indicated herein above.

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16. Learned counsel appearing for the appellant

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has fairly submitted that except seeking for addressing the arguments on merits, he would not seek for any other relief and has assured this Court that final argument would be addressed on any date that may be fixed by this Court. Said submission and undertaking is placed on record.

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RE-POINT NO.(II):-

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For the reasons aforestated, we proceed to pass the

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following;

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ORDER

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(i) Appeal is allowed.

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(ii) Judgment and decree passed in O.S.No.5854/2016 dated 16.06.2020 by III Additional City Civil and Sessions Judge, Bengaluru City (CCH-25) is hereby set-aside and matter is remitted back to the trial Court for adjudication afresh.

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(iii) Both parties are directed to appear before the trial Court on 12.07.2021 and address the arguments on merits irrespective of the fact whether it would be virtual Court or physical Court. On no ground whatsoever, trial Court shall grant any adjournment. It is made clear that both the parties shall conclude their arguments on the said date without fail.

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(iv) Trial Court shall pronounce the judgment within four weeks from the date of conclusion of arguments ie., on or before 13.08.2021 .

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(v) Registry is directed to refund the Court fee paid on this appeal memo to the appellant by transferring the said amount to the account of the

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appellant within ten days from the date of filing of such affidavit, on filing of an affidavit by the appellant disclosing name of Bank, Branch, IFS Code.

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(vi) Registry to re-transmit the original records to the trial Court forthwith.

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Sd/JUDGE

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Sd/JUDGE

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G Srinivas v. Shri Felix Antony Menezes

Case brief

What is this about?

What did the court decide?

G Srinivas v. Shri Felix Antony Menezes

Case brief

What is this about?

What did the court decide?

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Statutes considered

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